Concerns Voiced over HB 351, a Death Penalty Expansion Bill
Concord, NH – February 7, 2017
Today in the NH House Criminal Justice and Public Safety Committee, witnesses testified on HB 351, a bill to expand the death penalty by making “a person who knowingly causes the death of a child guilty of capital murder.” (More information about the bill here.)
Among those speaking on the bill were: Greg Smith, former NH Attorney General; Sabrina Butler Porter, who was convicted and sentenced to death for the death of her 9-month-old son, and later exonerated; Robert Dunham of the national Death Penalty Information Center (DPIC), and Barbara Keshen, former prosecutor with the state of NH and the chair of the NH Coalition to Abolish the Death Penalty.
According to Dunham, an attorney and a nationally recognized expert on the death penalty, parents and others are often convicted of murdering children when in fact no crime has occurred at all. “In these heartbreaking cases,” Dunham told the committee, “parents who tragically lost their children to sickness or accident are then wrongfully convicted and sentenced to death based on faulty evidence and/or prosecutorial misconduct.” Dunham also spoke about how HB 351 would represent one of the broadest expansions of capital punishment in the US during a time when capital prosecutions and executions are at a 40-year low. (DPIC does not take a position on the death penalty per se, but offers information and statistics on its use across the US.)
Barbara Keshen argued that many child death cases she encountered as a prosecutor were related to mentally incompetent or overwhelmed parents. “In one case that I handled the mother who killed her son was found not guilty by reason of insanity and was sent to the Secure Psychiatric Unit,” said Keshen. “In a second case the father, who killed his two children, later killed himself in jail. Making the killing of a child a capital offense would have done nothing to prevent or deter those terrible tragedies.”
Death Row Exoneree Sabrina Butler Porter shared her story of having found her son unconscious and desperately trying CPR until he could be attended to by hospital staff. The prosecution claimed the resulting bruises were the cause of the death, and Butler described how the police forced a confession under extreme duress, leading to a death sentence. “My new attorney got a new trial and showed that my son died from a hereditary kidney condition. There was no murder at all.” In all, Butler spent 2 years and 9 months on death row.
Three people, including the bill sponsor, spoke in favor of the bill, while eight spoke against. The Criminal Justice Committee will discuss the bill in executive session sometime in the next few weeks.
The Coalition is working to fight back an attempt to expand the death penalty in New Hampshire yet again. HB 351-FN specifically makes “a person who knowingly causes the death of a child guilty of capital murder.” It is being sponsored by: Werner Horn, Jeanine Notter, James Spillane, Ryan Smith, and Francis Gauthier. Here is the full text of the bill: http://www.gencourt.state.nh.us/lsr_search/billText.aspx?id=183&type=4.
The bill will be heard in the Criminal Justice and Public Safety Committee (click here for a list of committee members). The hearing date is Tuesday, February 7 at 2pm in LOB 204 (more information here).
Last year, NH pro-death penalty forces tried to expand executions to those guilty of acts of terrorism. With help from our members, we were able to secure an “inexpedient to legislate” vote from the Criminal Justice committee on the (de)merits of the bill and ultimately defeated the bill. We see this new attempt as a cynical ploy to expand the death penalty at any cost.
HB 351-FN is a solution in search of a problem
Child murders are very low in New Hampshire and our state has a good record of appropriately prosecuting them. In the most recent case of a child death last year in NH, the mother was clearly mentally and emotionally unequipped to deal with the demands of a special needs child. Rather than executing such individuals, we should provide better and more timely social and mental health services to parents in distress.
HB 351-FN would be extremely expensive
The Department of Justice has stated that “death penalty cases are more expensive to investigate and litigate than non-death penalty homicide cases.” The state of New Hampshire has already spent more than $5 million over the last 10 years for the prosecution, defense and other non-counsel services of a single death penalty case (Michael Addison).
HB 351-FN increases the likelihood of wrongful convictions and the execution of innocent parents
Parents and others are often convicted of murdering children when in fact no crime has occurred at all. In these heartbreaking cases, parents who tragically lost their children to sickness or accident are then wrongfully convicted and sentenced to death based on faulty evidence and/or prosecutorial misconduct.
Cases covered by HB 351-FN are particularly vulnerable to faulty evidence and prosecutorial misconduct.
Any time a child dies it is highly emotional. Child deaths bring great public and political pressure to attribute blame and solve the crime, and this is precisely when the criminal justice system has the most chance of getting it wrong. This is why child murder cases are often riddled with conclusions based on junk science, suggestive interrogation leading to false witness testimony, wrongful witness identification, and prosecutorial misconduct.
There are numerous examples where inadequately trained medical examiners wrongfully attribute a death of a child from natural or accidental causes as homicide. One of the most common attributions for child death leading to murder prosecutions is Shaken Baby Syndrome, but recent scientific and forensic advances are casting doubt on such once-firm conclusions.
Download PDF: Fact Sheet on HB 351 (Death Penalty Expansion). This includes a small sampling of people who were put on death row — and one who was executed — wrongfully.
 Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right (University of Michigan Law School)
Click on individual images to view larger versions.
Kirk’s visit in September was dynamic and impactful. Many activists and students came out to Portsmouth Public Library, Plymouth State University, and Southern NH University to watch his movie and to engage in lively question-and-answer sessions. Kirk talked about the state of our criminal justice system, the problems with eyewitness identification, bad legal defense, prosecutorial bias, junk science being used to convict the innocent, and many other related issues.
Kirk’s overall message was, “You can’t climb over the execution of the innocent to get to the satisfaction of killing those who kill others.” Few can speak about this with such authenticity and authority as Kirk does. Kirk also spoke about his work with Witness to Innocence and efforts underway in other states such as Nebraska (overturning legislative repeal via referendum) and California (two opposite ballot initiatives).
At the SNHU event we were fortunate also to have present a friend of Kirk’s and fellow DNA exoneree, Dennis Maher, who spent 19 years in prison before being released from a life sentence in Massachusetts for rapes he did not commit. Dennis’s story was no less powerful. You can read more about him here: http://www.
Coverage of Kirk’s visit included the following:
- Concord Monitor: http://www.
concordmonitor.com/First- inmate-in-the-nation- exonerated-by-DNA-evidence-to- hold-event-in-Manchester- 5044563
- Portsmouth Herald/Seacoast Online: http:/
/www.seacoastonline.com/news/ 20160927/bloodsworth- advocates-for-abolishing- death-penalty
- Arnie Arnesen’s “The Attitude” Podcast: http://www.wnhnfm.
Delaware Supreme Court Rules Death Penalty is Unconstitutional
8.2.16 | Today, the Delaware Supreme Court issued an order declaring Delaware’s death penalty statute unconstitutional in light of the U.S. Supreme Court’s recent ruling in Hurst v. Florida. The Hurst decision found that juries, not judges, must ultimately decide whether a defendant should receive a death sentence. The decision is attached.
Last year, Delaware’s State Senate voted to replace the death penalty with a sentence of life without parole for the second time in three years. The bill was supported by Governor Jack Markell, despite narrowly failing to get enough votes in the House earlier this year. Given the political obstacles that would have to be overcome to amend the statute, it is unlikely the General Assembly will move to revive the death penalty–rendering the state without a valid death penalty statute, just like New York state.
Delaware now joins the growing majority of states that have abandoned the death penalty in law or in practice. Including Delaware, nineteen states and the District of Columbia formally ban capital punishment, and 12 states haven’t carried out an execution in approximately 10 or more years (CO, NH, KS, PA, CA, AR, WY, MT, NC, NV, OR, and NE). Three of those 12 states have gubernatorial moratoriums on executions in place (Colorado, Oregon, and Pennsylvania) and Nebraska’s conservative legislature voted to replace the death penalty with life without parole last year. That decision will be decided by the voters in November. Washington state also has a gubernatorial moratorium in place.
How Overzealous Personalities Drive
The Death Penalty
Harvard report highlights the lion-sized role in modern death penalty of just four men and a woman, and how capital punishment is a ‘personality-driven system’
FairPunishment.org Report (Download or Read PDF Here)
One had a poster from the movie Tombstone on his office wall with “Justice is coming” emblazoned on it; another used a miniature model of an electric chair as a paperweight; a third, dubbed the “Queen of death”, said she was “passionate” about judicially killing people and described the emotion of watching an execution as a “non-event”.
What they all had in common was a vast appetite for putting men and women to death. What additionally made them special was that they all had the power to turn such unusual tastes into sentences.
As head prosecutors in their counties, just five individuals have been responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who are currently awaiting execution in the US, it is equivalent to one out of every seven.
Or express the figure another way: of the 8,038 death sentences handed down since the death penalty was restarted in the modern era 40 years ago this week, some one in 20 of them have been the responsibility of those five district attorneys alone.
The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman.
They are: Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; Bob Macy of Oklahoma County; Lynne Abraham of Philadelphia County; and Johnny Holmes of Harris County, Texas.
Just how extraordinary this elite club of lawyers is can be seen in the biography of Bob Macy. Until his death in 2011, he was known as Cowboy Bob because of his traditional frontier dress sense: he always wore cowboy boots, a large cowboy hat, a black string tie, a black suit and a white shirt.
Over the course of 21 years as the top prosecutor in Oklahoma County, Macy put 54 people on death row. That gave him the distinction of sending more people to their potential deaths than any other district attorney in the nation.
And many did actually go to their deaths. According to records compiled by the Fair Punishment Project, 30 of those prisoners were executed.
That might have presented an ethical burden to some, but not to Macy. As he sat beneath his Tombstone poster, he ruminated on the “patriotic duty” of prosecutors to aggressively pursue death sentences. He was proud of having sent a 16-year-old, Sean Sellers, to the death chamber before the US supreme court banned the execution of juveniles in 2005.
The problem is that Macy’s sense of legal propriety was not as honed as his sense of patriotic duty. The Harvard report notes that about a third of the 54 capital sentences he secured were later challenged and misconduct uncovered; three death-row prisoners were exonerated.
A similarly disturbing pattern of misconduct and error is recorded by the other deadliest prosecutors. Britt, who died in April, obtained 38 death sentences in the course of his 14-year career.
FairPunishment.org Report (Download or Read PDF Here)
Source: Washington Post
The Connecticut Supreme Court on Thursday again said that it would be unconstitutional to execute inmates on the state’s death row, upholding a decision from the same court last year effectively banning the death penalty in the state.
In a decision in August, the state’s justices ruled that Connecticut could not execute death-row inmates for crimes committed before the state largely abolished capital punishment. Under a law signed in 2012, Connecticut agreed to abandon the death penalty going forward, while also retaining it as an option for crimes committed before that bill became law.
After an inmate named Eduardo Santiago — convicted of murdering someone in 2000 — challenged his death sentence, a divided Connecticut Supreme Court said last year that he could not be executed because the 2012 law “creates an impermissible and arbitrary distinction” between crimes committed before and after that measure went into effect. (Santiago was re-sentenced to life in prison without parole in December.)
The state’s high court upheld its earlier ruling in a 5-to-2 decision handed down Thursday in a case focusing on Russell Peeler, a man sentenced to death for his role in the 1999 killings of a woman and her 8-year-old son.
The justices ruled that Peeler must instead be sentenced to life in prison without the possibility of parole, because his earlier sentence “must be vacated as unconstitutional in light of” last year’s decision. Three justices wrote concurring opinions, while two authored dissents, one of which said the ruling last year “inflicted [damage] on the rule of law” that “must be repaired.”
Gov. Dannel P. Malloy (D), who signed the 2012 law abolishing the death penalty, reiterated his opposition to capital punishment on Thursday and focused on how the new ruling will keep the death-row inmates from ever seeking parole.
“Today’s decision reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom,” he said in a statement. He added: “Our focus today should not be on those currently sitting on death row, but with their victims and those surviving family members. My thoughts and prayers are with them on this difficult day.”
According to the state Department of Corrections, Connecticut has 11 inmates on death row. Kevin T. Kane, the chief state’s attorney, said his office would “move forward to re-sentence” the remaining death row inmates so that they are all given sentences of life imprisonment without parole.
“I appreciate having been granted the opportunity to present the state’s position on all of the issues the present court raised about Connecticut’s death penalty,” Kane said in a statement. “The court has now spoken and, as always, we respect its decision.”
The only state in New England that still has capital punishment on the books is New Hampshire, where legislators recently came within one vote of abolishing it. Since 2007, seven states have formally abandoned the death penalty. However, they have not agreed on what to do with the people on death row once this takes effect. In some cases, such as New Jersey and Illinois, death sentences were commuted to life sentences without parole. This is what Nebraska’s bill abolishing the death penalty also would do; while lawmakers there voted to get rid of capital punishment last year, that law remains on hold until voters decide in November.
In other cases, though, inmates have remained on death row and the effect on their sentences has been uncertain after their states abandoned the death penalty. Like Connecticut, Maryland — the last of the states to formally outlaw the death penalty— abolished the practice while exempting those already on death row. Before he left office, former governor Martin O’Malley (D) commuted the sentences of the remaining inmates to life terms.
Connecticut has executed only one inmate since the U.S. Supreme Court reinstated the death penalty in 1976. The state considered abolishing the death penalty in 2009, but Malloy’s predecessor, M. Jodi Rell, vetoed a bill that year that would have eliminated the practice.
Her decision came as the state was reeling after a horrifying home invasion there two years earlier. Two men broke into a family’s home before sexually assaulting a woman, Jennifer Hawke-Petit, and her 11-year-old daughter, Michaela. The two men also beat the girl’s father, William, before killing Jennifer, Michaela and the couple’s 17-year-old daughter, Hayley. Both men accused in the case — Joshua Komisarjevsky and Steven Hayes — were convicted, found guilty and sentenced to death. This crime was cited as the reason lawmakers compromised in 2012, getting rid of the death penalty while keeping it in place for people, like those two men, who had committed crimes beforehand.
[NHCADP Comment:] Relevance for NH: In no state where the death penalty has been abolished has any death row inmate subsequently been executed. This fact has been cited in the NH Senate to push back against our repeal efforts, making it a referendum on Michael Addison (NH’s sole death row inmate), even though any such law is always prospective and not retrospective. That said, we’re happy that no one is being executed, but our legislative efforts are never aimed at one person. We want to ban the death penalty for all, now and in the future.